How Did Abortion Become Legal?
By Melissa McCall, J.D. | Legally reviewed by Aviana Cooper, Esq. | Last reviewed May 28, 2023
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Although abortions are part of healthcare, women in the United States haven't always had the right to an abortion. Before 1973, states decided whether abortion would be legal within their borders.
So how did abortion become legal nationwide? In a 1973 landmark decision, Roe v. Wade, the U.S. Supreme Court decided that abortion was included in a woman's right to privacy. Until 2022, abortion was a right under federal law. This changed in 2022 with the Dobbs v. Jackson Women's Health decision.
In Dobbs, the Supreme Court rolled back the federal protections of Roe. The Court decided that states could decide about abortion care under their respective state law. This was a dramatic departure from Roe.
Roe v. Wade
Roe v Wade provided federal protections for women seeking abortion care since the Supreme Court's 1973 decision.
Norma McCorvey, the plaintiff, was an unmarried pregnant Texas woman with limited options. She sought an abortion under Texas law. However, abortion was not legal in Texas when she was pregnant. Under Texas law at the time, abortion services were only permitted if the mother's health was in danger. McCorvey filed a federal lawsuit under the pseudonym "Jane Roe" to have this law declared unconstitutional. Roe argued that a law prohibiting her from obtaining an abortion violated her constitutional right to privacy.
The U.S. Supreme Court, in a 7-2 vote, agreed with Roe that Texas's law criminalizing abortion care violated her right to privacy.
The right to privacy is not clearly stated in the Constitution. But three amendments in the Bill of Rights imply this right. These amendments include the First, Fourth, and Fifth Amendments. The Court also held that states are interested in ensuring the safety and well-being of pregnant people and the potential of human life.
The Court acknowledged that the rights of pregnant people may conflict with the state's rights to protect potential human life. The Court defined the rights of each party by dividing pregnancy into three 12-week trimesters:
- During a pregnant person's first trimester, the Court held that a state could not regulate abortion beyond requiring that a licensed provider perform the procedure in medically safe conditions.
- During the second trimester, the Court held, a state may regulate abortion if the regulations are reasonably related to the pregnant person's health.
- During the third trimester of pregnancy, the state's interest in protecting the potential human life is more significant than a person's right to privacy. The state may prohibit abortions unless an abortion is necessary to save the life or health of the mother.
The Court further held that a fetus is not a person protected by the Constitution. The decision in Roe v. Wade did not end the controversy surrounding abortion. Instead, it increased the surrounding debates.
After Roe v. Wade
The issues around abortion care and reproductive rights are still debated and shaped to this day. These issues include:
- The availability of abortion medication
- Whether minors can get abortion care
- Whether health insurance or Medicaid coverage can include abortion care
These laws may restrict healthcare providers who provide abortion care. The following are Supreme Court decisions that refined (and eventually overturned) Roe v. Wade and impacted abortion care.
Planned Parenthood v. Casey
In 1992, the Supreme Court reaffirmed its position that abortion should be legal in the case of Planned Parenthood v. Casey.
This case challenged a series of Pennsylvania regulations — ranging from a mandatory waiting period for abortion to a spousal consent provision — which limited a woman's access to abortion.
Though the Supreme Court upheld most of the Pennsylvania laws, the Court struck down the spousal consent requirement as an "undue burden" on married women.
Gonzales v. Carhart
Before Dobbs, states didn't try to ban abortions. Instead, legislatures limited the period when a person could receive abortion care. Legislatures also regulated the procedures used to perform abortions. One restriction is a limitation on a procedure known as a "partial-birth" or late-term abortion.
Partial birth abortion, medically, is a procedure performed when the mother's life is in danger. A provider may suggest this procedure if the fetus has severe abnormalities and cannot survive. This procedure is also known as dilation and evacuation. The physician dilates the mother's cervix (the opening to the uterus) and removes the fetus from the womb.
These procedures often occur in the later stages of pregnancy. During the earlier stages of pregnancy, fetal abnormalities may be undetectable. Many late-term abortions are performed to protect the patient's life. Whether or not the mother carries to full-term, a pregnancy loss is usually the result.
In 2003, Congress passed the Partial-Birth Abortion Ban Act, prohibiting the intact dilation and extraction abortion procedure. The procedure occurs during the second trimester, sometimes after the point of viability.
In 2007, the Supreme Court's ruling in Gonzales v. Carhart upheld the ban on partial-birth abortion as constitutional, concluding that it did not impose an undue burden on a woman's right to choose an abortion.
Whole Woman's Health v. Hellerstedt
In 2016, the Supreme Court's ruling in Whole Woman's Health v. Hellerstedt struck down a restrictive Texas law that required all doctors who perform abortions to have admitting privileges at a hospital within 30 miles of their clinic. The law would have also required clinics to meet surgical-center operating standards. The impact of this law would reduce the number of abortion care providers, as well as abortion clinics such as Planned Parenthood. It would also have changed access to reproductive health care services.
In this case, the Supreme Court concluded that the law was unconstitutional and would have resulted in an undue burden on women's abortion rights. The ruling affected states with similar laws either on the books or in the works, including Alabama, Arkansas, and Louisiana.
This Supreme Court's decision ensured continued abortion access from abortion providers in Texas and other states. States such as New York continued to offer legal abortions.
The Future Of Abortion Rights
As noted above, Dobbs v. Jackson overturned Roe v. Wade. The practical impact of this decision was rescinding Roe's federal protections. In the aftermath of Dobbs, healthcare professionals such as gynecologists cannot provide clinical abortion care in many states. Providers may be subject to lawsuits from their states' attorneys general. Providers may not offer referrals for abortion care. Law enforcement may get involved if women's health clinicians try to provide abortion care.
Many women may have to get abortion care out-of-state. Women's health providers may move their practices to states with less regulation. Private insurance plans may not cover abortions. Medical care may be limited. A woman may have limited access to contraception. Pharmacies may decline to fill prescriptions for medication abortion or emergency contraception. The state may gain access to your private medical information.
It is imperative to know your legal rights.
Seeking Legal Advice on Abortion Laws
If you have questions about abortion laws in your state, you may wish to speak with a qualified healthcare lawyer today. A skilled attorney will be able to explain the laws of your state and answer questions about the legality of abortion care.
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